Palestinian war crimes case against Israel would face many obstacles

JERUSALEM – Just days after winning upgraded status at the United Nations, the Palestinians are already threatening to join the world's first permanent war crimes court and pursue charges against the Israelis.

Although the Palestinians say that any decision is still a long ways off, the mere threat has unnerved Israel. But pressing a case may not be so simple and could potentially leave the Palestinians themselves vulnerable to prosecution.

Since winning recognition as a nonmember observer state in the United Nations General Assembly last week, the Palestinians believe they now qualify for membership in the International Criminal Court.

In opposing the Palestinian bid at the U.N., Israel repeatedly cited Palestinian threats to turn to the ICC to prosecute Israeli officials for a variety of alleged crimes, ranging from actions by the Israeli military to Israel's construction of Jewish settlements on occupied land.

While Israel does not recognize the court's jurisdiction and believes its actions do not violate international law, officials are concerned legal action that could embarrass Israel, make it difficult for Israeli officials to travel overseas or portray the country as a pariah state. A war crimes conviction can include fines and maximum penalties of life in prison.

With this in mind, a senior Palestinian official, Nabil Shaath, spoke of possible ICC action over Israel's tough response to the U.N. bid. Israel immediately cut off $100 million in tax transfers to the Palestinians and announced plans to build thousands of new homes in West Bank settlements.

"By continuing these war crimes of settlement activities on our lands and stealing our money, Israel is pushing and forcing us to go to the ICC," Shaath said late Monday.

On the surface, the Palestinians appear to have a strong case against Israeli settlements in the West Bank and east Jerusalem. The Palestinians claim the two areas, as well as the Gaza Strip, for their future state.

The U.N. resolution last week recognized a Palestinian state in all three territories, captured by Israel in the 1967 war. Israel withdrew from Gaza in 2005 but continues to control access in and out of the area.

The U.N. resolution appeared to repudiate the Israeli position that the West Bank and east Jerusalem are "disputed" territories and effectively condemned Israeli settlements in the areas, which are now home to some 500,000 Israelis. Settlements are at the heart of the current four-year deadlock in peace efforts, with the Palestinians refusing to negotiate while Israel continues to build more settler homes.

The ICC's founding charter describes "the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" as a war crime.

The Palestinian position on settlements has widespread international support. The international community, even Israel's closest ally, the U.S., has broadly condemned the latest planned settlement construction.

"Under our very clear understanding of international law, the settlements are illegal and have always been illegal, and that will remain so," Andrew Standley, the European Union's ambassador to Israel, told reporters Tuesday.

Even so, turning this international opposition into legal action against Israel will be no small task. The Palestinians would face a number of legal and political obstacles in pressing forward.

For starters, it remains unclear whether the Palestinians qualify for membership in the court, because it is open only to states.

Last April, the court's chief prosecutor at the time, Luis Moreno-Ocampo, turned down a request by the Palestinians to join the court. But he subsequently said in an AP interview that they would qualify for membership if they gained nonmember state status at the U.N.

So far, the court has said only that it "takes note" of last week's U.N. decision and will consider its "legal implications." Moreno-Ocampo is no longer at the court.

Goran Sluiter, professor of international law at Amsterdam University, said that with their newfound status, it seems likely the Palestinians could join the ICC. But it is unclear whether the court would agree to investigate their complaints.

He said the court would look at key issues, including the gravity of the alleged crimes and whether Israel's own judicial system is capable of judging the case, before deciding whether to prosecute. If they were to launch a probe, prosecutors also would look at alleged crimes by Palestinians.

"I think there is still a very, very, very, long way to go," Sluitter said. In the conflict between the Palestinians and Israel, "there's a broad range of conduct that could be a basis for further investigations because they would qualify as war crimes."

Robbie Sabel, a former legal adviser to the Israeli Foreign Ministry, said he thinks the Palestinians "will seriously hesitate" taking action against Israel.

He said Israel, for instance, could try to hold the Palestinian Authority responsible for rocket attacks out of the Hamas-ruled Gaza Strip aimed at Israeli cities. Palestinian President Mahmoud Abbas, who lost control of Gaza to Hamas five years ago, claims to represent both territories on the international stage.

"Any Hamas person who launches a rocket could then be subject to ICC ruling. They have to expose their own people first," said Sabel, who is now a law professor at the Hebrew University.

A U.N. report into heavy fighting between Israel and Hamas four years ago found evidence of war crimes by both sides.

Israeli Foreign Ministry spokesman Yigal Palmor said Israel would fight any attempt by the Palestinians to use the ICC as a "politicized instrument" against Israel.

"We are not worried about Israel's case because we have a good solid case and we work strictly according to international law," he said.

The Palestinians would also face heavy political pressure not to go to court. The U.S. Senate, for instance, is currently debating legislation that would cut off millions of dollars in assistance to the Palestinians and close their diplomatic offices in Washington if they file charges against Israel. The legislation is expected to be voted on in the coming days.

A senior Palestinian official said the Palestinians are in "no hurry" to rush to the ICC, in part because they are pleased with the heavy international condemnations of Israel's latest settlement plans but also because of fears of antagonizing the U.S.

The official, speaking on condition of anonymity because he was discussing internal high-level deliberations, said the Palestinians are now focused on repairing ties with the U.S., which sided with Israel in opposing last week's U.N. resolution. Yet he noted that the Palestinians have refused calls to promise not to go to the ICC.

In a letter to the U.N. secretary-general on Monday, the Palestinian representative to the United Nations complained that "all Israeli settlement activities are illegal ... and thus constitute a war crime." Yet, reflecting the Palestinian thinking, the letter did not threaten to pursue the matter in the ICC.